1
ontario regulation 511/09
made under the
Environmental Protection Act
Made: December 9, 2009
Filed: December 29, 2009
Published on e-Laws: December 30, 2009
Printed in The Ontario Gazette: January 16, 2010
Amending O. Reg. 153/04
(Records of Site Condition — Part XV.1 of the Act)
1.(1)Subsection 1 (1) of Ontario Regulation 153/04 is amended by adding the following definitions:
“area of natural significance” means any of the following:
1.An area reserved or set apart as a provincial park or conservation reserve under the Provincial Parks and Conservation Reserves Act, 2006.
2.An area of natural and scientific interest (life science or earth science) identified by the Ministry of Natural Resources as having provincial significance.
3.A wetland identified by the Ministry of Natural Resources as having provincial significance.
4.An area designated by a municipality in its official plan as environmentally significant, however expressed, including designations of areas as environmentally sensitive, as being of environmental concern and as being ecologically significant.
5.An area designated as an escarpment natural area or an escarpment protection area by the Niagara Escarpment Plan under the Niagara Escarpment Planning and Development Act.
6.An area identified by the Ministry of Natural Resources as significant habitat of a threatened or endangered species.
7.An area which is habitat of a species that is classified under section 7 of the Endangered Species Act, 2007 as a threatened or endangered species.
8.Property within an area designated as a natural core area or natural linkage area within the area to which the Oak Ridges Moraine Conservation Plan under the Oak Ridges Moraine Conservation Act, 2001 applies.
9.An area set apart as a wilderness area under the Wilderness Areas Act;
“areas of potential environmental concern” means the area on, in or under a phase one property where one or more contaminants are potentially present, as determined through the phase one environmental site assessment, including through,
(a)identification of past or present uses on, in or under the phase one property, and
(b)identification of potentially contaminating activity;
“contaminants of concern” means,
(a)one or more contaminants found on, in or under a property at a concentration that exceeds the applicable site condition standards for the property, or
(b)one or more contaminants found on, in or under a property for which no applicable site condition standard is prescribed under Part IX (Site Condition Standards and Risk Assessment) and which are associated with potentially contaminating activity;
“description”, in reference to a description approved by the Surveyor General, means a plan of survey prepared, signed and sealed by a surveyor or a descriptive map of a property;
“lawyer” means a person authorized under the Law Society Act to practise law in Ontario;
“medium” means soil, ground water or sediment;
(2)The definitions of “Phase I ESA Standard” and “Phase II ESA Standard” in subsection 1 (1) of the Regulation are revoked and the following substituted:
“phase one property” means the property that is the subject of a phase one environmental site assessment;
“phase one study area” means the area that includes a phase one property, any other property that is located, wholly or partly, within 250 metres from the nearest point on a boundary of the phase one property and any property that the qualified person determines should be included as a part of the phase one study area under clause 3 (1) (a) of Schedule D;
“phase two property” means the property that is the subject of a phase two environmental site assessment;
“potentially contaminating activity” means a use or activity set out in Column A of Table 2 of Schedule D that is occurring or has occurred in a phase one study area;
(3)Subsection 1 (1) of the Regulation is amended by adding the following definitions:
“RA property” means a property that is the subject of a risk assessment;
“RSC property”, in relation to a record of site condition, means the property in respect of which the record of site condition is submitted for filing or is filed;
“site condition standards” means the full depth background site condition standards, full depth generic site condition standards and stratified site condition standards;
“surveyor” means a person licensed under the Surveyors Act to practice cadastral surveying in Ontario;
(4)The definition of “Soil, Ground Water and Sediment Standards” in subsection 1 (1) of the Regulation is amended by striking out “March 9, 2004” at the end and substituting “July 27, 2009”.
(5)The definitions of “subsurface soil” and “surface soil” in subsection 1 (1) of the Regulation are revoked and the following substituted:
“subsurface soil” means soil that is more than 1.5 metres beneath the soil surface, including the bottom .5 metres of any non-soil surface treatment such as asphalt, concrete or aggregate above the soil surface, but excluding the thickness of any such non-soil surface treatment that is greater than .5 metres;
“surface soil” means soil that is no more than 1.5 metres beneath the soil surface, including the bottom .5 metres of any non-soil surface treatment such as asphalt, concrete or aggregate above the soil surface, but excluding the thickness of any such non-soil surface treatment that is greater than .5 metres;
(6)The definition of “waste disposal site” in subsection 1 (1) of the Regulation is amended by striking out “the Phase I ESA Standard and”.
(7)Paragraph 3 of the definition of “commercial use” in subsection 1 (3) of the Regulation is amended by striking out “Ontario Regulation 403/97 (Building Code)” in the portion before subparagraph (i) and substituting “Division B of Ontario Regulation 350/06 (Building Code) made under the Building Code Act, 1992”.
(8)Subparagraph 1 i of the definition of “community use” in subsection 1 (3) of the Regulation is revoked and the following substituted:
i.indoor recreational activities, other than activities involving uses that fall within the classification of occupancies in Table 3.1.2.1. of Division B of Ontario Regulation 350/06 (Building Code), Group A, Division 3, assembly occupancies of the arena type,
(9)Paragraph 2 of the definition of “community use” in subsection 1 (3) of the Regulation is revoked and the following substituted:
2.In respect of the classification of occupancies in Table 3.1.2.1. of Division B of Ontario Regulation 350/06 (Building Code), use that falls within Group A, Division 1, assembly occupancies intended for the production and viewing of the performing arts.
(10)Paragraph 2 of the definition of “industrial use” in subsection 1 (3) of the Regulation is amended by striking out “Ontario Regulation 403/97 (Building Code)” in the portion before subparagraph i and substituting “Division B of Ontario Regulation 350/06 (Building Code)”.
(11)Paragraph 11 of the definition of “industrial use” in subsection 1 (3) of the Regulation is revoked and the following substituted:
11.Use for the storage, maintenance, fuelling or repair of equipment, vehicles or material used to maintain transportation systems.
(12)Clause (d) of the definition of “parkland use” in subsection 1 (3) of the Regulation is revoked and the following substituted:
(d)in respect of the classification of occupancies in Table 3.1.2.1. of Division B of Ontario Regulation 350/06 (Building Code), use that falls within,
(i)Group A, Division 3, assembly occupancies of the arena type, or
(ii)Group A, Division 4, assembly occupancies in which occupants are gathered in the open air;
(13)Paragraph 2 of the definition of “residential use” in subsection 1 (3) of the Regulation is amended by striking out “Ontario Regulation 403/97 (Building Code)” in the portion before subparagraph i and substituting “Division B of Ontario Regulation 350/06 (Building Code)”.
2.Section 4 of the Regulation is revoked and the following substituted:
Owner of property
4.For the purposes of Part XV.1 of the Act,
“owner”, in relation to a record of site condition or risk assessment, includes a beneficial owner of or receiver in respect of the property for which the record of site condition is submitted for filing, is to be submitted for filing or is filed or for which the risk assessment is submitted.
3.The Regulation is amended by adding the following sections:
Qualified persons, conflict of interest
6.1(1)No qualified person mentioned in section 5 or 6 shall, in respect of a RSC property or RA property in which the qualified person or his or her employer holds a direct or indirect interest,
(a)conduct or supervise a phase one or phase two environmental site assessment;
(b)complete the certifications that must be completed by a qualified person in a record of site condition in respect of a property; or
(c)prepare or supervise a risk assessment.
(2)Nothing in subsection (1) shall be construed so as to derogate from any obligations imposed on the qualified person under the Professional Engineers Act or the Professional Geoscientists Act, 2000.
Qualified persons as employee
6.2(1)A qualified person mentioned in section 5 or 6 who is the employee, shareholder, director, partner or principal of a firm, company or partnership and who wishes to submit a record of site condition or risk assessment,
(a)shall file with the Director the document referred to in subsection (2), if the qualified person has not previously filed the document with the Director; and
(b)shall, within 12 months after filing the document with the Director under clause (a) and annually thereafter for as long as the qualified person remains an employee, shareholder, director, partner or principal of the firm, company or partnership, file the document referred to in subsection (2) with the Director.
(2)The document the qualified person who is the employee, shareholder, director, partner or principal of a firm, company or partnership shall file with the Director is,
(a)a copy of the Certificate of Status, in the case of a corporation incorporated under the Business Corporations Act; or
(b)an equivalent document in the case of any other type of corporation or of a firm or partnership.
(3)The document referred to in subsection (2),
(a)shall be dated no earlier than one month before the date on which the qualified person first submits a record of site condition or risk assessment, where the qualified person is submitting the document for the first time; and
(b)shall be dated no earlier than one month before the date on which the qualified person first submits a record of site condition or risk assessment during the 12-month period applicable to the qualified person submitting the document.
4.Subsection 7 (3) of the Regulation is amended by striking out “and in respect of property owned by the employer” at the end.
5.Section 8 of the Regulation is amended by adding the following subsection:
(3)The Director may cause a record of site condition, notice, certificate of property use or other document that has been filed in the Registry to be updated to add new information and remove previous information and the change shall not require a new filing, if the Director becomes aware of, and the update relates to, a change to,
(a)a mailing address, fax number, postal code or e-mail address or a change in the mailing address, fax number, postal code or e-mail address of the owner of an RSC property who has submitted the record of site condition for filing or on whose behalf the record of site condition was submitted for filing;
(b)a municipal address or a change in the municipal address of an RSC property;
(c)a notice of a certificate of property use or an altered or revoked certificate of property use related to an RSC property; or
(d)the mailing address for an owner of the RSC property at the time the record of site condition was filed, other than an owner referenced in clause (a).
6.Subsections 10 (1) and (2) of the Regulation are revoked and the following substituted:
Notice of order in Registry
(1)The Director may require that the Registry contain notice of a certificate of property use issued, altered or revoked pursuant to section 168.6 of the Act, with respect to a property for which a record of site condition has been filed.
7.(1)Subsection 16 (1) of the Regulation is amended by striking out “and filed” and substituting “and submitted for filing”.
(2)Subsection 16 (2) of the Regulation is amended by striking out “any part of”.
8.The Regulation is amended by adding the following sections:
Prescribed time for notice or acknowledgement
16.1Thirty days, excluding holidays and Saturdays, is the time prescribed for the purposes of clause 168.4 (3) (b) of the Act.
Prescribed defects
16.2(1)The following are prescribed defects for the purposes of clause 168.4 (3.3) (a) of the Act:
1.Failure to comply with a requirement of this Regulation for a phase one environmental site assessment or a phase two environmental site assessment.
2.Failure to comply with any requirement referred to in paragraph 1 because the manner in which the requirement is addressed fails to achieve the general or specific objectives of the assessment.
3.Failure to complete a record of site condition in accordance with the Act or this Regulation.
(2)The notice of a defect provided by the Director shall be of sufficient detail so as to alert the owner to the nature of the defect.
9.(1)Subsection 17 (2) of the Regulation is amended by striking out “any part of”.
(2)Subsection 17 (3) of the Regulation is amended by striking out “any part of”.
10.Section 18 of the Regulation is revoked and the following substituted:
Retention and storage of reports
18.(1)For the purposes of subsection 168.4 (5) of the Act, the prescribed period for the retention of a report is seven years after the date the record of site condition listing the report is filed in the Registry.
(2)Subsection (1) and subsection 168.4 (5) of the Act do not apply in respect of a qualified person if a qualified person takes all reasonable steps to ensure that a copy of the report is stored for the period referred to in subsection (1) in the offices of the firm, company or partnership where the qualified person was employed at the time when the record of site condition was completed.
11.(1)Paragraph 1 of subsection 20 (2) of the Regulation is amended by striking out “in accordance with the agreement” at the end.
(2)Subsection 20 (2) of the Regulation is amended by adding the following paragraph:
1.1The person sold the property to a purchaser pursuant to an agreement for the purchase and sale of land that included a condition, covenant or term that the purchaser would submit a record of site condition for filing in the Registry under section 168.4 of the Act and the filing of a record of site condition by the purchaser in respect of the property has been acknowledged by the Director under section 168.4 of the Act.
(3)Section 20 of the Regulation is amended by adding the following subsection:
(3)If an agreement mentioned in paragraph 1 of subsection (2) is made before the day subsection 6 (1) of Schedule 13 to the Budget Measures and Interim Appropriation Act, 2007comes into force, it is sufficient for the purpose of satisfying the requirement in that paragraph if the purchaser has submitted for filing a record of site condition in respect of the property that was the subject of the agreement and the filing of the record of site condition by the purchaser in respect of the property has been acknowledged by the Director under section 168.4 of the Act.
12.Section 21 of the Regulation is revoked and the following substituted:
Soil Management
21.(1)This section applies in relation to a property if a record of site condition has been filed in the Registry containing a certification under sub-subparagraph 4 i C of subsection 168.4 (1) of the Act by a qualified person that the property meets the applicable stratified site condition standards for all prescribed contaminants subject to any exceptions specified by the qualified person.
(2)A person who owns or occupies the property, or a person who has charge, management or control of the property, shall ensure that surface soil and subsurface soil on, in or under the property meets the applicable stratified site condition standards for all prescribed contaminants subject to any exceptions specified by the qualified person in the certification referred to in subsection (1).
13.The Regulation is amended by adding the following section before Part VI:
Transition
21.1(1)This section applies to a record of site condition if,
(a)the record of site condition, together with the acknowledgment referred to in clause (d), is submitted for filing on a day that is later than the latest of the days referred to in subsections 32 (2) and (3) of Ontario Regulation 511/09, but is before January 1, 2013;
(b)a notice of receipt has been given pursuant to clause 168.4 (3) (a) of the Act with respect of the record of site condition before January 1, 2013;
(c)the owner of the property in respect of which the record of site condition is being submitted for filing has, before January 1, 2011, submitted a notice in the form approved by the Director; and
(d)the owner has received from the Ministry a written acknowledgment in the form approved by the Director of the notice referred to in clause (b).
(2)The notice under clause (1) (b) shall,
(a)contain a certification by a qualified person in the words of paragraph 1 of section 10 of Schedule A with respect to the RSC property; and
(b)contain, in the language specified in the form of notice approved by the Director, either or both of, as applicable,
(i)a certification by the owner that a risk assessment with respect to a contaminant at the property has been submitted, together with the date of the submission and the number of the risk assessment, or
(ii)a certification by the owner that action to reduce the concentration of a contaminant on, in or under the RSC property in order to meet a standard specified in a risk assessment accepted by the Director for the contaminant with respect to the property or, where none exists, the applicable site condition standard for the contaminant, has begun.
(3)Where this section applies to a record of site condition,
(a)the definition of “Soil, Ground Water and Sediment Standards” in subsection 1 (1) as it read immediately before the date on which subsection 1 (4) of Ontario Regulation 511/09 came into force applies to the record of site condition;
(b)sections 36, 37, and 41 as they read immediately before the date on which sections 16, 17 and 18 of Ontario Regulation 511/09 came into force apply to the record of site condition;
(c)section 43.1and all references to section 43.1 do not apply to the record of site condition; and
(d)all references to section 41 of the Regulation are deemed to mean section 41 as it read immediately before the date on which section 18 of Ontario Regulation 511/09 came into force.
14.Parts VI, VII and VIII of the Regulation are revoked and the following substituted:
part vI
definitions for and interpretation of phase One and phase Two Environmental Site Assessments
Definitions and interpretation
22.(1)In Parts VII and VIII and Schedules D and E,
“all reasonable inquiries” means review of current and historical sources of reasonably accessible information about a property to determine uses and occupancies of the property since the property’s first developed use;
“building” means a building as defined in subsection 1 (1) of the Building Code Act, 1992;
“contaminant of potential concern” includes a contaminant identified as potentially present on, in or under a phase one property in a phase one environmental site assessment report;
“enhanced investigation property” means a property that is being used or has been used, in whole or in part, in a manner described in clause 32 (1) (b) to which subsection 32 (2) does not apply;